Federal Recognition of Native American Tribes in Virginia - and Gambling

Virginia has a state-controlled process that has granted official recognition to 11 tribes. Recognition by the Federal government is a totally separate process.

Virginia's tribes were conquered by English colonists long before the Federal government was created in 1788. As a result, there are no Federal treaties and no Federal reservations involving the Virginia tribes. As one reporter noted in 2010 about the Native Americans in Virginia:1

They were here before Virginia was called Virginia, but the federal government still doesn't recognize them.

In 2016, the 200-person Pamunkey tribe succeeded in getting Federal recognition via the administrative process of the US Department of the Interior. In January 2018, the US Congress passed the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act. That bill granted Federal recognition, through legislative action, to the Chickahominy, the Eastern Chickahominy, the Upper Mattaponi, the Rappahannock, the Monacan, and the Nansemond tribes in Virginia. There were 4,400 members of those six tribes affected by the new law.2

The Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act bypassed the administrative process managed by the Bureau of Indian Affairs in the US Department of the Interior. The Pamunkey tribe first requested formal Federal recognition through that administrative process in 1982, and were later joined by several tribes. "Recognition" would establish a government-to-government relationship between each tribe and the United States, making members of the tribe eligible for funding and services from the Bureau of Indian Affairs.

Their efforts received heightened attention during the 400th commemoration of the settlement of Jamestown in 2007, but did not result in Federal recognition. The Mattaponi and Pamunkey still continued to followed the administrative process. Those two tribes had the best documentation, dating back to a reservation established by treaty in 1646, and were most likely to meet the review requirements. Other tribes in Virginia had less documentation of their persistence since disruption in colonial times. Six of them chose to pursue a legislative remedy, the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act.

The Mattaponi application remains frozen in the administrative review conducted by the Bureau of Indian Affairs, and the tribe was not included in the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act. Other tribes recognized by the state but not the Federal government, in addition to the Mattaponi, are the Cheroenhaka (Nottoway), Nottoway, and Patawomeck.

In the 2013 and 2015 sessions of the US Congress, the House of Representatives had approved the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act but the US Senate never voted on the bill. Individual senators apparently placed a "hold" on the bill, blocking it from being considered.

In May 2017, Rep. Rob Wittman obtained unanimous approval by the House of Representatives. On January 11, 2018, Senators Tim Kaine and Mark Warner managed to trigger a vote. Though the Washington Post said they "forced a surprise vote on the bill by unanimous consent Thursday afternoon with no guarantee it would pass," the senators had arranged in advance for leaders of each tribe and the Virginia Indian Tribal Alliance for Life to be present for the vote. President Trump signed it on January 29, 2018.3

The bill was named after Thomasina Elizabeth Jordan (Red Hawk Woman), who died in 1999. She was a member of the Alexandria Republican City Committee, and the first American Indian to serve in the Electoral College (in 1988). She was appointed chair of the Virginia Council on Indians by Republican governor George Allen, and re-appointed by Republican governor James Gilmore. She was an effective and well-respected advocate when seeking support from the General Assembly for Native American programs.4

The lack of Federal recognition has limited the ability of Virginia tribes to rely upon Federal protections for cultural heritage. They have been unable to access funding available to recognized tribes in social programs for education, housing and health care, which could amount to $10-12 million/year. The Congressional Budget Office projected that the government would spent $67 million over the 2018-2022 period if the six Virginia tribes were granted recognition.

Federal recognition would enable these nations to strengthen their communities with increased federal protections for religious freedom (1978 American Indian Religious Freedom Act), child welfare (1978 Indian Child Welfare Act), and return of ancestral remains (1990 Native American Graves and Repatriation Act)
and make them eligible for federal assistance in the areas of education and health care (1975 Self-Determination and Educational Assistance Act, 1988 Self-Governance Project) and housing programs...

The administrative recognition process for Federal recognition is based in the Executive Branch. It relies upon Bureau of Indian Affairs (Department of the Interior) regulations issued in 1978, after lawsuits over fishing rights in the Pacific Northwest and land ownership in Maine.

The Bureau of Indian Affairs (BIA) description of the Federal recognition process included these answers to Frequently Asked Questions:6

What is a federally recognized tribe?

A federally recognized tribe is an American Indian or Alaska Native tribal entity that is recognized as having a government-to-government relationship with the United States, with the responsibilities, powers, limitations, and obligations attached to that designation, and is eligible for funding and services from the Bureau of Indian Affairs.

Furthermore, federally recognized tribes are recognized as possessing certain inherent rights of self-government (i.e., tribal sovereignty) and are entitled to receive certain federal benefits, services, and protections because of their special relationship with the United States. At present, there are 566 federally recognized American Indian and Alaska Native tribes and villages.

In 1978, the Interior Department issued regulations governing the Federal Acknowledgment Process (FAP) to handle requests for federal recognition from Indian groups whose character and history varied widely in a uniform manner. These regulations – 25 C.F.R. Part 83 – were revised in 1994 and are still in effect.

Also in 1994, Congress enacted Public Law 103-454, the Federally Recognized Indian Tribe List Act (108 Stat. 4791, 4792), which formally established three ways in which an Indian group may become federally recognized:

- By Act of Congress,

- By the administrative procedures under 25 C.F.R. Part 83, or

- By decision of a United States court

until the 2015 decision on the Pamunkey Tribe, there were no Federally-recognized tribes within Region 3 of the Environmental Protection Agency (EPA)
Source: Environmental Protection Agency, Environmental Protection in Indian Country

The administrative procedures of the Bureau of Indian Affairs, 25 Code of Federal Regulations (CFR) Part 83, require extensive documentation of continuous tribal existence throughout time. As of 2015, the Federal government had recognized 566 tribes, but roughly 400 other groups claimed tribal status. The Federal administrative recognition process was so slow that it would require over 100 years before the backlog of petitions in 2015 would be eliminated.7

The Pamunkey and Mattaponi chose to seek Federal recognition through the administrative recognition process, anticipating that they could meet the historical documentation required by the Bureau of Indian Affairs. Executive Branch officials have recommended consistently that Virginia tribes must go through the administrative process to obtain recognition. The director of the Office of Federal Acknowledgement at the Department of the Interior objected to the Thomasina Jordan Indian Tribes Of Virginia Federal Recognition Act in 2006, since a decision by Congress would allowing the Virginia tribes "to avoid the scrutiny to which other groups have been subjected."8

The Chickahominy, Eastern Chickahominy, Monacan, Nansemond, Rappahannock, and Upper Mattaponi chose a path that was not included in Public Law 103-454, the Federally Recognized Indian Tribe List Act. Those six Virginia tribes requested special legislation by the US Congress to grant them Federal recognition.

Their basic argument was that social repression since the colonial period had required tribal communities to live in the shadows, minimizing their appearance in historical records. Many county records were burned in the Civil War, removing proff of tribal existemce and continuity in the 1700's and 1800's.

More recently, state and local government repression in the early 1900's had eliminated the documentation required by the Bureau of Indian Affairs to show continued persistence as a distinct tribe. The General Assembly's 1924 Racial Integrity Act and forceful action by the registrar of Virginia's Bureau of Vital Statistics (Dr. Walter Plecker) suppressed, modified or purged many historical records.

The tribes could not meet the documentation standards required by the Bureau of Indian Affairs because of government action, so a government remedy was appropriate.

Seeking direct legislative action was not a new idea. As far back as 1923, Rappahannock chief George Nelson had appealed directly to Congress to appropriate $50,000 to establish an Indian school in Virginia.9

Both Republican and Democratic legislators from Virginia have sponsored Federal recognition bills. Some have been approved by the House of Representatives, but the US Senate never voted approval until 2018.

The Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act was introduced first in 2007. The bill authorized the Secretary of Interior to take "into trust" as Federal reservations lands owned by those tribes within defined geographic boundaries, and bypassed the administrative process to legislatively grant Federal recognition to the Chickahominy, the Eastern Chickahominy, the Upper Mattaponi, the Rappahannock, the Monacan, and the Nansemond tribes.

The Cheroenhaka (Nottoway), Nottoway, and Patawomeck were not included in the proposed Federal law. They were the last three tribes recognized by the state, and they bypassed Virginia's administrative process for state recognition managed by the Virginia Council on Indians. That council did not endorse the Nottoway request for recognition, and the Cheroenhaka (Nottoway) and Patawomeck never submitted a petition to it for state recognition.

The three tribes went directly to the General Assembly in 2010. Wayne Newton claimed Patawomeck heritage and drew media attention when testifying in support of recognition. The state legislature chose to ignore the administrative process and passed a law that granted state recognition to the Cheroenhaka (Nottoway), Nottoway, and Patawomeck. In response, the Virginia Council on Indians then stopped meeting. It was dissolved in 2012, ending the administrative process for state recognition of Native American tribes.10

Support for Federal recognition of the Chickahominy, Eastern Chickahominy, Upper Mattaponi, Rappahannock, Monacan, and Nansemond tribes has been bipartisan in Virginia. In the House of Representatives, the 2015 and 2017 chief sponsor of H.R.872 was a Republican, Rep. Rob Wittman. His 1st District included much of the territory in Tidewater Virginia once controlled by Powhatan's paramount chiefdom.

Rep. Rob Wittman's district included much of the territory in Tidewater Virginia once controlled by Powhatan's paramount chiefdom
Source: ESRI, ArcGIS Online

In 2015 and 2017 Rep. Wittman's bill was co-sponsored by a fellow Republican from the 2nd District, which included the Eastern Shore and Virginia Beach. Other co-sponsors in the House were the Democratic Representative from the 3rd District (which included much of the James River watershed downriver from Richmond) plus two Democratic Representatives representing the 8th and 11th districts in Northern Virginia. The Democratic US Senators from Virginia supported a parallel recognition bill in the US Senate.

Four Republican members who represented Congressional districts affected by recognition of those six tribes were not co-sponsors at the time of the 2015 hearing. The Representatives from the 4th and 7th Districts (which included territory once controlled by the Nansemond, Rappahannock, and Upper Mattaponi) and the Representatives from the 5th and 6th Districts (with territory once occupied by the Monacan) declined to co-sponsor the bill.11

the US Representative from the 1st District sponsored a bill in 2015 for recognizing six Virginia tribes and the US Representatives from the 2nd, 3rd, 8th, and 9th districts joined as co-sponsors (area colored green), but the US Representatives from four other Virginia districts that would be affected (4th, 5th, 6th, and 7th) did not join in co-sponsoring H.R.872
Source: ESRI, ArcGIS Online

There was opposition to recognition based on concerns that other, unqualified groups across the country would be encouraged to avoid the Bureau of Indian Affairs process. There was also opposition based on racial identity and economic rivalry.

The Department of the Interior announced in early 2014 that the Pamunkey tribe with 203 members had "met all seven mandatory criteria for Federal acknowledgment." The Congressional Black Caucus and MGM organized last-minute objections.

Pamunkey tribal law had allowed new spouses who married a tribal member to live on the reservation, but not if the spouse was black. Until 2012, the law said:12

No member of the Pamunkey Indian Tribe shall intermarry with anny (sic) Nation except White or Indian under penalty of forfeiting their rights in Town.

That restriction was a relic of the early 1900's. Virginia adopted numerous "Jim Crow" laws to segregate blacks from whites, and starting in the 1920's state officials tried to classify Native Americans as "colored." In response, the Pamunkey sought to heighten awareness of their distinctive Native American heritage and to minimize public perception that there was any association with non-whites.

Rep. Frank Wolf, who represented the 10th District in Northern Virginia between 1981-2015, was an influential opponent motivated by the gambling issue. He claimed Federal recognition could lead to casino gambling authorized under the Indian Gaming Regulatory Act of 1988, even though tribes recognized after 1988 must comply with state laws and Virginia bans such gambling. Rep. Wolf did not block passage in the House of Representatives, but his opposition may have led to the bills being stalled by "holds" in the Senate.

Rep. Wolf stated that his objections would disappear if the Virginia tribes would accept Federal legislation that permanently banned casino gambling on tribal lands, within or outside of the boundaries of a reservation and independent of any future loosening of Virginia's state restrictions on gambling:13

"Virginia does not have casino gambling, and because we do not, we have avoided the crime, corruption and scandal that a number of other states have fallen victim to... My concern is not with the federal recognition of Virginia's Indian tribes. My concern is with the explosive spread of gambling and the potential for casino gambling to come to Virginia."

In 2014, Rep. Wolf was no longer in office. Instead, the MGM corporation objected to Federal recognition of the Pamunkey tribe.

Pamunkey Neck was reserved for Native Americans after the Anglo-Powhatan wars in the 1600's
Source: ESRI, ArcGIS Online

MGM held a State of Maryland license to operate the gambling casino at National Harbor on the Potomac River. The Pamunkey occupied a 1,200-acre reservation, the oldest in Virginia, halfway between Hampton Roads and Richmond in King William County. It feared that Federal recognition of the Pamunkey tribe would lead to a competing casino on the Pamunkey reservation.

Late in 2015, the Washington Post revealed that the tribe was negotiating with a casino developer as the Department of the Interior was making the final decision on Federal recognition. The chief and council prepared a new tribal budget with costs increasing from $30,000/year to $500,000/year. No source of new funding was documented to provide a new $100,000/year salary for the chief of the tribe and a $25,000/year salary for each of the six council members. The Pamunkey responding by ousting the chief from his elected position.

The only logical source for funding the proposed increase in the tribal budget was a corporation making a speculative investment, planning to shape a future decision to allow casino gambling on the Pamunkey reservation. That could have been MGM, covering all the bases. As one member of the tribe noted:14

You ain't gonna get that kind of money by opening up a little store on the reservation...

Though the tribe conceivably could negotiate with Virginia and Federal officials and ultimately open a casino on the Pamunkey River, there is no guarantee that the site could attract enough customers to be profitable or compete with MGM at National Harbor. The Pamunkey reservation is a 40-minute drive from I-64, much of it on poor 2-lane roads.

Colonial Downs racetrack, on an I-64 interchange halfway between Hampton Roads and Richmond, provided a more-accessible location for gambling, but it was unable to attract enough customers and shut down in 2014. The Colonial Downs racetrack had a monopoly for horse race gambling in Virginia. It was the only racetrack in the state with an unlimited pari-mutuel license authorizing gambling throughout the year.

Despite being right on I-64, gambling at the racetrack was not popular enough to draw enough customers out of the urban areas. Colonial Downs generated most of its revenue from Off Track Betting (OTB) kiosks highlighting races at tracks in other states.

The profits from OTB operations did not offset the costs of hosting races at Colonial Downs. In 2014, the racetrack surrendered its unlimited pari-mutuel license and closed the OTB facilities. If a racetrack with offsite betting could not draw enough customers to stay in business, the business case for a casino at the Pamunkey reservation was even thinner.

the reservation of the Pamunkey Tribe is north of I-64, and visitors must drive an additional 45-60 minutes longer on 2-lane roads than is required to reach Colonial Downs
Source: ESRI, ArcGIS Online

MGM may have anticipated the tribe could partner with a competing gambling corporation and open a casino at a location more convenient for customers than the reservation on the Pamunkey River. The Federal government has authority to designate additional property - even Colonial Downs - as part of the Pamunkey Reservation. In what may have been MGM's worst-case scenario, the tribe might arrange a business deal with a rival, a political deal with the Virginia General Assembly, and open a tribal gambling casino at the site of the racetrack. A Virginia casino on I-64 could reduce the number of customers willing to drive to MGM's casino's in Maryland.

Opposition to Federal recognition of the Pamunkey Tribe came from non-gambling sectors as well. In 2015 the Virginia Petroleum, Convenience and Grocery Association testified in opposition. It feared that convenience stores located on reservations would not charge state tobacco, gasoline, or sales taxes.

At the time, the state excise tax was 17.5 cents/gallon for gasoline. Eliminating the need to pay that tax could allow a gas station on the reservation to offer lower prices and undercut gas stations nearby. The lobby group portrayed the option of a sovereign Native American tribe to set and collect its own taxes on reservation lands as "tax evasion."15

The US Department of the Interior continued to support recognition of the Pamunkey tribe. The regulations for considering evidence of historical tribal integrity were revised, and the Bureau of Indian Affairs announced on July 2, 2015 that the Pamunkey tribe had met the criteria because it had:16

- Continuously identified as an American Indian body since 1900;

- Existed as a distinct community and maintained political influence over its members since historical times;

- Provided a list of its current members who descend from a historical Indian tribe and who are not also members of another federally recognized tribe;

- Never been subject to congressional legislation that expressly terminated or forbade the federal relationship.

The decision was not final. In October, 2015, a non-government organization called Stand Up for California filed an appeal with the Interior Department to block the decision to recognize the Pamunkey tribe. Stand Up for California, which opposed gambling on Indian lands, resubmitted the same arguments it had made during the administrative process. Those echoed the concerns of MGM, as well as moral opposition to gambling.

During the time required for the Interior Board of Indian Appeals to consider the appeal, the tribe was unable to access any Federal programs that might have been made available after recognition. In early 2016, the Federal agency rejected the appeal and confirmed recognition of the Pamunkey tribe.17

That decision did not affect the Chickahominy, Eastern Chickahominy, Rappahannock, Monacan, Nansemond, and Upper Mattaponi tribes. It also did not affect the Mattaponi, with their own reservation and their own case for administrative recognition like the Pamunkey.

In September, 2016, when the Natural Resources Committee in the US House of Representatives approved the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act, Rep. Wittman from the 1st District commented:18

These tribes shouldn't be denied federal recognition because of one-size-fits-all requirements that fail to account for circumstances beyond their control.

Once again, committee approval occurred late in the second session of the Congress, just before the election in November. There was not enough time for action by the full House and the Senate and again the process for legislative recognition fell short of closure.

In 2017, the two US senators and five Representatives from Virginia introduced the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2017, starting the process for legislative recognition once again. The 2017 bill also excluded the Mataponi.19

The 2017 bill was also bipartisan, though a court-ordered redistricting of Congressional boundaries for the 2016 election changed which tribes were represented by the members of the US House of Representatives. Much of the territory once controlled by the Chickahominy and the Eastern Chickahominy moved from the 1st to the 2nd District. The same redistricting shifted the ancestral homeland of the Rappahannock and Upper Mattaponi from the 7th into the 1st District.

Rep. Rob Wittman (1st District) introduced the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2017 in the US House of Representatives, and fellow Republican Rep. Scott Taylor (2nd District) co-sponsored it. The Republican in the 7th District, whose district lost most of its territory east of the Fall Line and in 2017 represented even less of what was once Tsenacommacah, did not co-sponsor the bill in 2015 or in 2017.

Democrats in Northern Virginia supported the bill even though it affected tribes who had never lived in the 8th or 11th districts, to show support for Native Americans.

Before the 2016 redistricting, the 3rd District had included significant portion of Tsenacommacah once controlled by Powhatan. After the redistricting, the home of the Nansemond tribe shifted from the 4th District into the 3rd District. In 2017, the Democrat representing the 3rd District renewed his previous support for recognition and co-sponsored the bill.

The redistricting resulted in a Democrat replacing a Republican as the US Representative for the 4th District. That district still included some territory once occupied by the Nansemond, but the location where the tribe was developing a cultural center had shifted to the 3rd District. The new Democrat representing the 4th District, Rep. Donald McEachin, did not initially co-sponsor the recognition bill in 2017 but did sign on several weeks later.

The redistricting did not affect the 5th and 6th Districts, home to the Monacan tribe. The newly-elected Republican serving the 5th District and the re-elected Republican incumbent in the 6th District both declined to co-sponsor the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2017.20

Republicans in the 1st and 2nd districts, and Democrats in the 3rd, 4th, 8th, and 11th districts, supported legislative recognition of six Virginia tribes in 2017
Source: ESRI, Virginia Public Access Project